FOI Gap Restricts Information on Vancouver Fires

When the Value Village store on East Hastings Street in Vancouver burned down in June 2022, it was a major event attended by dozens of firefighters and widely covered in the local media. But in the year that’s followed the public has learned little about what happened.

The provincial law governing the release of records by public bodies hasn’t helped, said journalist Stanley Tromp, and has in fact been a barrier to learning more about the blaze.

“What was the cause?” asked Tromp in explaining why he’s seeking the fire incident report from the City of Vancouver. “Arson? Could there be a serial arsonist? Could there be a systemic structural safety problem, which might also affect other buildings?”

Fire incident reports, which could help answer some of those questions, are routinely available from the city to anyone in the public for a minimum of $260 plus federal sales tax for reports with photos (or $130 if the incident did not involve a fire investigator or photos).

Tromp says that’s too expensive, particularly for a freelance reporter like him. “Who in media can afford $260 for a single-page report? And to see four of these — to check for a serial arsonist — would cost $1,040. The public already paid for the reports' production via their taxes.”

Rather than pay the fee he asked to have the report on the Value Village fire released for free by appealing under British Columbia’s Freedom of Information and Protection of Privacy Act.

Under FIPPA public bodies may charge fees to respond to requests, but applicants can contest them and appeal to the independent Office of the Information and Privacy Commissioner. The OIPC oversees B.C.’s access to information laws to rule on whether the fees should be waived, as they often are for anything involving public health or safety.

But the city responded that FIPPA doesn’t cover the report since it is already available for purchase, an interpretation the OIPC says is correct.

“It is clear that the information you are seeking is available for purchase through Vancouver Fire Rescue Services,” OIPC investigator Christina Sefcik told Tromp in a June 21 letter. “I recognize that obtaining the records would come at an expense, however, section 3(5)(a) states that FIPPA does not apply to records that are available for purchase to the public and this is the case here.”

Tromp said he was frustrated with the OIPC’s response, which he sees as sending a message that public bodies are free to avoid scrutiny simply by making records available for sale at prices that are too high for reporters or many other people to pay.

“This is a disaster for the public interest, and morally indefensible,” Tromp said in an email, adding that it would be a “grievous error” for the OIPC to refuse to hold an inquiry on the problem. “It makes it simply impossible to inform the public about local fires' causes.”

Both the city’s policy of charging for fire incident reports and FIPPA’s treatment of records that are available to buy are long-standing.

Vancouver Fire Rescue Services assistant chief Tom Cooper says he has worked for the department for more than 30 years and fire reports have been available for sale for at least that long.

The price is set under the Vancouver Fire Bylaw and is based on a rate of $130 per hour or part of an hour, Cooper said in an email. Producing a fire report involves multiple divisions of the fire department and takes more than an hour when a fire investigator is involved.

Anyone can request a report and typically purchasers include insurance companies, private investigation firms, law offices, ICBC and private citizens, he said, adding that about 300 reports are released each year.

Asked what allowance there may be for media interest in the reports, Cooper said, “The department has a media relations officer.”

(Tromp said he also tried requesting the report through the media relations department but they declined to release it.)

Similarly, FIPPA’s treatment of records that are available for the public to buy has been in place for a long time.

A spokesperson for the Ministry of Citizens’ Services, which is responsible for the FOI law, said that since 1992 when the act was first passed “there has always been an ability to refuse to disclose records that were available for purchase under FOI. The fundamental intent of this provision has not changed.”

The provision came up for debate in 2011 when it moved from one section of the act to another. It also at that time changed from a situation where the head of a public body “may refuse” to release the record to one where the record would not be covered by the act at all. (In 2021 another amendment was made so that such records would again be included in the sections of the act covering privacy.)

The minister responsible in 2011, Margaret Macdiarmid, explained during the debate what the government was trying to prevent. She gave the example of a book published by the Crown press and said someone couldn’t use the FOI legislation to get a photocopy of the book.

“Now we've made it very clear that you cannot obtain a book that is for sale in that way,” she said. “You would need to purchase the book and not use an FOI request in order to obtain that information.”

The change came out of a recommendation the OIPC made in 2004.

The government of the day decided not to act, however, on a related recommendation that said, “The act should be amended to allow Cabinet to prescribe, by regulation, a government-wide policy on access to published information by public interest groups.”

The special committee that reviewed the act that year declined to endorse that recommendation, which could also have applied to media requests, saying that “In our opinion, the introduction of differential fees would amount to special treatment for select groups of British Columbians, an idea we cannot entertain.”

The Citizens’ Services spokesperson said examples of records for purchase could include maps, aerial photos or printed versions of building codes. “Government is committed to removing fees on published material wherever possible,” they said, noting that the digital versions of BC Codes have been free since 2019.

Tromp said that even if the Vancouver fire department’s fee for fire incident reports and its refusal to release them without payment is consistent with FIPPA, it contravenes the spirit of the act and the OIPC should proactively investigate.

Also, he said, the government should amend the law so that the section on publications available for purchase only applies “if such material is available at a reasonable price and in a format that is reasonably accessible.” It should also give the OIPC the power to investigate and make a decision when there’s a dispute, he added.

“I wish all the media would join in this fight, as the problem directly impairs their ability to bring vital news to the public,” Tromp said.

Update, July 14: After this story ran, Tromp said the OIPC told him the complaint will be referred for an inquiry and a decision by an adjudicator, a process that can take a year. "The stakes are huge," said Tromp. "If the city wins, then any public body could charge almost anything for almost any public record, claiming it is exempt from FOI requests just because it is 'for sale.' This could nullify the FOI system."